An agency worker does not necessarily have to hold a temporary post
A German employee was employed by a temporary-work agency, starting on 1 September 2014. Until 31 May 2019, he was assigned exclusively to the German car maker Daimler, to work on an engine assembly line. However, his job was not intended to replace a worker, and consequently he held a permanent post. When it received an application for this period of employment, lasting almost five years, to be reclassified as a permanent contract, a German court referred several points to the EU Court of Justice, including that of whether an agency worker could hold a permanent post (CJEU, 17 March 2022, Case C-232/20, Case NP v. Daimler AG).
Article 1 of Directive 2008/104/EC states that it applies to agency workers “who are assigned to user undertakings to work temporarily under their supervision and direction.” (see Temporary agency work). Does this provision preclude an agency worker being assigned to the same undertaking for a period in excess of 55 months, in order to take up a permanent job rather than to provide cover for an absent employee? The Court of Justice rules that “the word ‘temporarily’ is not intended to limit the application of agency work to posts that would either not exist on a long-term basis or would have to be performed to provide cover, because this word refers not to the job held at the user undertaking, but the circumstances under which a worker is assigned to this undertaking”.
Consequently, “the EU Parliament did not intend to limit recourse to agency work by allowing agency workers to hold only posts that are temporary in nature”. The German court also asked whether assigning this worker to the company for 55 months, due to successive renewals of his contract, can still be described as a ‘temporary’ mission, within the meaning of the said directive, or, on the other hand, is an abusive practice.
The Court of Justice emphasises that there are no provisions in the directive “fixing the time period beyond which a worker’s assignment can no longer be described as ‘temporary’”. Likewise, there are no provisions requiring Member States to stipulate such a time period. Nor does the directive require States “to limit the number of successive missions performed by the same worker at the same user undertaking”. However, the first sentence of Article 5, paragraph 5, of the directive requires States to take the necessary measures to prevent employers assigning successive missions to an agency worker in order to circumvent the provisions of this directive.
The State can therefore set a specific term beyond which a worker can no longer be deemed to be assigned ‘temporarily’. If it does not adopt such a measure, it is up to the national courts to determine this time period on a case-by-case basis, taking account of the sector’s specific characteristics and the objective explanations given by the employer, as to why it is resorting to a succession of agency missions with the same worker.
Lastly, another point raised in the ruling is that, in the absence of any national legislation sanctioning non-compliance with the directive, EU law does not grant agency workers a subjective right to the creation of an employment relationship with the user undertaking. In other words, the agency worker cannot apply for their employment relationship to be reclassified as a permanent contract of employment, solely on the basis of EU law. If the worker believes that they are suffering a prejudice arising from a national law that is incompatible with the directive, they will have to bring a further lawsuit against the State, to seek redress for this.
